Diltz v. Sadler

Citations

• 37 Tex. 137

Syllabus

<p>1. In 1863, S. sold to D. several tracts of land, taking D.’s note for part of the purchase-money, and executing to D. a bond for title. After maturity of the note, S. brought suit upon it in personam against D., who pleaded a partial failure of the consideration of the note, admitting his possession of all the land, but alleging that S. had no title to some of the tracts, though without designating which of the tracts, or their extent or value. S. thereupon amended his petition, and admitted that the note was for the purchase-money of the land, and tendered into court a deed to D. for all the lands, alleging it to constitute a perfect title; and he prayed that his vendor’s lien he enforced. D. demurred to the petition as amended, on the ground that it contained admissions to the effect that S. did not have title to all of the tracts at the time he instituted this suit. The overruling of the demurrer is assigned for error. Reid, that there was no error in- the ruling, as the pleadings of the plaintiff contain no such admission. But even if the plaintiff had admitted all of the allegations made in the defendant’s answer, he would still have heen entitled to maintain the suit. The consideration of the note might have failed in part, and yet the plaintiS he entitled to a judgment.</p> <p>2. The ruling in Chambers v. Bonner, 33 Texas, 511, approved, to the effect that nothing but proof of a positive agreement by parties to a promissory note payable in “ dollars,” that it should he payable in Confederate money, will authorize a jury to find that it was payable in that illegal currency. The presumption is, that such a note is payable in lawful money.</p>